Montgomery v. Blades
| Decision Date | 08 January 1943 |
| Docket Number | 750. |
| Citation | 23 S.E.2d 844,222 N.C. 463 |
| Parties | MONTGOMERY v. BLADES |
| Court | North Carolina Supreme Court |
This was a civil action to recover damages for personal injuries to the plaintiff alleged to have been caused by the wrongful act, neglect and default of the defendants.
The facts necessary to the understanding of the disposition of this case are these: The plaintiff, a young woman 26 years of age, was riding as a guest in an automobile owned and operated by William B. Blades, on the 21st day of February, 1939, on Chapel Hill Street in the City of Durham. Across Chapel Hill Street is an overpass constructed and maintained by the defendant railway company by and with the consent and approval of the defendant city. In the centre of said street there was a row of concrete pillars about 13 1/2 feet high and 18 inches thick to support the tracks of the defendant railway company, which row of pillars extended the entire width of the tracks.
The westernmost pillar is under the western edge or side of the overpass and in the centre of Chapel Hill Street. The automobile of William B. Blades, operated by him and in which the plaintiff was riding as a guest, was proceeding east on Chapel Hill Street from the intersection of said street and Duke Street, and ran headlong into said pillar, causing the death of Blades, the driver, and serious and permanent injury to the plaintiff, a guest passenger.
At the close of the evidence, it having been made to appear that the plaintiff, for and in consideration of the payment of $4,500, had entered into a covenant not to sue the Blades estate, the Court, by agreement of the plaintiff and defendant administratrix, entered a voluntary nonsuit as to said estate.
The defendant railway company and city both moved the Court at the close of the plaintiff's evidence, and renewed their motions at the close of all the evidence, for a judgment as in case of nonsuit. C.S. § 567. These motions were denied and the appealing defendants preserved exceptions.
The jury answered the issues submitted in favor of the plaintiff and from judgment predicated upon the verdict, the defendants, Southern Railway Company and City of Durham appealed, assigning errors.
Victor S. Bryant and James R. Patton, Jr., both of Durham, for appellee.
W.T. Joyner, of Raleigh, and Hedrick & Hall, of Durham, for appellant Southern Ry. Co.
Claude V. Jones and S.C. Brawley, both of Durham, for appellant City of Durham.
Among other defenses set up by the appealing defendants is the contention that all of the evidence, both of the plaintiff and of the defendants, tends to show that the collision of the automobile in which the plaintiff was riding as a guest with the pillar supporting the railway tracks in the centre of Chapel Hill Street was caused by the negligence of the driver of said automobile, which negligence insulated any negligence of the appealing defendants in the construction and maintenance of said pillar, and became the sole proximate cause of the collision and consequent injuries to the plaintiff, and for that reason it was reversible error to deny the motions lodged by the appealing defendants for judgment as in case of nonsuit under C.S. § 567. With this contention we agree.
In our discussion of the case it will be conceded, but it is not decided, that the appealing defendant railway company and city were negligent in the construction and maintenance of the supporting pillar in the centre of the street.
In Haney, Administrator, v. Town of Lincolnton, 207 N.C. 282, 176 S.E. 573, 576, which was an action for the alleged wrongful death of the plaintiff's intestate, Sue Gurley, the facts were: The intestate was a guest passenger in an automobile driven by one Guy Barringer. The automobile was being driven on Church Street, approaching Mills Street, in the town of Lincolnton. Church Street intersected but did not cross Mills Street. On the opposite side of Mills Street from where Church Street intersected it there was a declivity some 6 or 10 feet deep. There was no barrier or light to warn a driver that Church Street did not cross Mills Street, or of the declivity opposite the intersection of Church Street. If it be conceded that the defendant town was negligent in failing to erect and maintain a barrier or light at the intersection, and that the driver of the automobile negligently failed to observe the situation and drove the automobile across Mills Street over the declivity, resulting in the death of the guest passenger, we have a case practically "on all fours" with the case at bar. In that case the court said: ."
Baker v. Atlantic Coast Line R. Co., supra, was an action to recover for the alleged wrongful death of the plaintiff's intestate, who was riding as an invited guest in an automobile driven by one Williams. Williams, the driver, fell asleep and the automobile collided with a concrete pillar standing in the middle of the highway, to support a railroad trestle over the highway underpass. In that case the Court, after stating it made no definite ruling as to whether the defendant could be held liable for negligent construction of the underpass in view of its approval by the State Highway Commission, said [205 N.C. 329, 171 S.E. 344]:
In the Haney case we have the passive negligence of the defendant in not constructing and maintaining a barrier or light or warning at the non-crossing intersection conceded. In the Baker case we have the passive negligence of the defendant in constructing and maintaining a concrete supporting pillar in the centre of the highway conceded. In the former case the Court held that the passive negligence of the defendant was insulated by the active negligence of the driver of the automobile in not seeing and observing the situation, and driving across the intersected street and down the declivity on the other side thereof. In the latter case the Court held that the passive negligence of the defendant was insulated by the active negligence of the driver of the automobile in falling asleep and driving the automobile into the pillar.
It is difficult, in truth we have found it impossible, to distinguish the case at bar from the Haney case, supra, and the Baker case, supra. In the case at bar, while it is conceded that the defendant railway company and the defendant city were negligent in the construction and maintenance of the pillar in the centre of Chapel Hill Street, still this pillar was static, and the negligence was passive, while the negligence of Blades, the driver of the automobile in which the plaintiff was riding as a guest passenger, in driving the automobile into the pillar was active, but for which the injury to the plaintiff would not have occurred, and therefore insulated the negligence of the defendants, and became the sole proximate cause of the plaintiff's injury.
All of the evidence of both the plaintiff and the defendants tends to establish the negligence of Blades, the driver of the automobile, and that but for his negligence the injury to the plaintiff would not have occurred. The plaintiff herself testified that in her action against the administratrix of Blades she alleged in her complaint that Mr. Blades "carelessly and negligently failed to keep a lookout for said post or obstruction in the street and negligently and carelessly failed to exercise due and proper precaution in the operation of his automobile in that he negligently failed to keep a lookout for and negligently failed to see said obstruction and negligently failed to drive his automobile on the right-hand side of the street at said point".
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